Texas employers should be aware that a recent federal court of appeals decision changes the law with regard to acceptable conditions of employment and potentially exposes more employers to discrimination claims under Title VII of the Civil Rights Act of 1964.
The Fifth Circuit Court of Appeals ruled the Title VII requirements had been interpreted too narrowly in past rulings and held that policies affecting terms of employment – such as the ability to select particular days off – could be the basis for illegal discrimination under Title VII.
The Supreme Court is set to rule on a case from the Eighth Circuit dealing with allegations of a discriminatory job transfer adversely affecting the conditions of employment. SCOTUS heard oral arguments in the case in December 2023. The Court’s ruling should provide further guidance for Texas employers and their employment and labor defense attorneys.
What Title VII Requires of Employers
Title VII prohibits employment discrimination on the basis of particular personal characteristics. The statute identifies certain employment practices that are considered unlawful. In part, it is an unlawful employment practice to:
“… discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex, or national origin …”
For nearly 30 years, the reigning precedent for interpretation of Title VII’s requirements was a Fifth Circuit decision from 1995 that Title VII was meant to address discrimination only in regard to ‘ultimate employment decisions’ such as hiring, granting leave, discharging, promoting, or compensating. Under the old interpretation, disparate treatment that did not involve an ultimate employment decision was not an adverse employment action under Title VII.
Why There Is Uncertainty as to What Constitutes an Adverse Employment Action in Texas
Recent decisions in state courts have left Texas employers wondering what kinds of disparate treatment regarding the terms, conditions, or privileges of employment might rise to the level of an adverse employment action.
Hamilton vs. Dallas County
The case that changed the law was Hamilton vs. Dallas County. The plaintiffs were women employed by the Dallas County Sheriff’s Office. The issue involved the county’s shift assignment policy. In 2019, the shift assignment policy was changed from a policy based on seniority to one based on sex. The new scheduling policy was discriminatory on its face.
Only men were allowed to schedule both weekend days off each week. Women could only schedule one weekend day off each week. The justification for the policy had to do with greater safety concerns for men if they had to work weekends. The discrimination claims of the women had been dismissed because although the scheduling policy was not fair, it did not involve an ultimate employment decision and, therefore, was not an adverse employment action in violation of Title VII.
With all judges participating, the Fifth Circuit took a look at the plain language of Title VII and decided the court’s previous interpretation limiting the scope of the statute was erroneous. The focus then proceeded to whether a sex-based shift scheduling policy that required women to work at least one weekend day while men could have two weekend days off was discrimination with regard to the terms, conditions, or privileges of employment.
The Fifth Circuit Court Decision and What It Means
Responding to the question of whether this policy was discriminatory, the court answered an “emphatic yes.” The times of the day or particular days an employee must work are clear terms of employment. Thus, Title VII prohibits discrimination based on sex. Supreme Court precedent supports the Fifth Circuit’s broader interpretation of Title VII requirements. SCOTUS has repeatedly maintained that discrimination regarding the terms, conditions, or privileges of employment can result in an actionable claim under Title VII.
However, what the Fifth Circuit failed to do – even though requested to do so by defendant Dallas County – is establish any kind of standard with regard to the level of harm that must result from the discrimination in order to violate Title VII. Other jurisdictions have required there be some type of measurable harm before Title VII liability applies. The court acknowledged the harm caused must be something more than a “de minimus workplace trifle” but left any further guidance for another day.
How the Supreme Court’s Ruling in Muldrow vs. City of St. Louis Could Affect Texas Employers
In Muldrow vs. City of St. Louis, the United States Supreme Court will be deciding if Title VII requires an employee to suffer a particular amount or level of harm from an employer’s discrimination in order to bring a Title VII action.
Muldrow was an experienced female police sergeant who was suddenly transferred from the division she’d worked in for nine years to another division. Her pay remained the same, but many of the other conditions and privileges she had enjoyed in her previous position were no longer available to her.
Officer Muldrow argued the transfer was discriminatory and adversely affected the terms, conditions, and privileges of her employment. She pointed out that her schedule changed from always having weekends off to having only an occasional weekend off. Her new work responsibilities were no longer commensurate with her previous experience. The new position also lacked the same perks – a car, plain clothes dressing – as she previously enjoyed.
Arguments in the Case
The crux of the City of St. Louis’ argument is that Muldrow has not suffered any “objective, meaningful harm.” She maintained her pay, rank, and supervisory authority. The transfer was part of a department-wide relocation of officers, which is not unusual. The Eighth Circuit agreed with the city and affirmed the lower court’s ruling, finding insufficient evidence of harm to support an adverse employment action.
The appeals court suggested that Muldrow’s harm was not significant enough to rise to the level of a Title VII claim because the employment changes were not “material.” The Supreme Court’s decision should provide more guidance as to whether and to what extent an employee must experience harm from employer discrimination to have an actionable Title VII claim.
Help With Title VII Compliance for Texas Employers
In the meantime, Texas employers should review any employment policies and procedures that might disparately treat or affect employees and make sure they are not discriminatory with regard to the terms, conditions, or privileges of employment. Employers with compliance questions can contact the Texas labor and employment lawyers at MehaffyWeber.